On June 22, the United States Supreme Court
decided Olmstead v. L.C., 1999 WL 407380 (1999), one of a number
of cases addressing aspects of the Americans with Disabilities Act of 1990
(ADA). The Court, by a 6-3 majority, ruled that the ADA requires states
to place persons with mental disabilities in community settings rather
than institutions if certain conditions are met.

The plaintiffs, L.C. and E.W., were two
women with mental retardation and mental illness and histories of institutionalization.
At the time the lawsuit was filed, both women were confined at the Georgia
Regional Hospital awaiting placement in one of the State of Georgiaís community-based
programs. In each case, the treatment team had concluded that treatment
in a community setting would be appropriate. The plaintiffs charged that
the Stateís failure to place them in community-based programs violated
Title II of the ADA, which applies to public services. Title II regulations
require that services be provided in "the most integrated setting appropriate
to the needs of qualified individuals," unless the modifications required
can be shown to "fundamentally alter" the nature of the service. The district
court ruled in favor of the plaintiffs, and the Court of Appeals for the
Eleventh Circuit affirmed.

The Supreme Court first addressed whether
unnecessary institutionalization qualifies as discrimination by reason
of disability under the ADA. The Department of Justice has taken this position,
and the Court found its views were entitled to respect. In opposition,
the State had argued that cost, rather than disability, motivated its denial
(delay) of community placement, and that plaintiffs had to show that similarly
situated individuals were given preferential treatment in order to establish
discrimination. Justice Ginsburg, writing for the Court, responded that
the ADA reflected a more comprehensive view of discrimination. In its introductory
findings, Congress explicitly identified unjustified segregation as a form
of discrimination, reflecting two "evident judgments:" (1) "institutional
placement of persons who can handle and benefit from community settings
perpetuates unwarranted assumptions that persons so isolated are incapable
or unworthy of participating in community life;" and (2) "confinement in
an institution severely diminishes the everyday life activities of individuals."
Further, persons with (serious) mental disabilities were being required
to relinquish participation in community life in order to receive medical
treatment, a sacrifice not required of persons without mental disabilities.

The Court emphasized that the ADA does
not condone termination of institutional settings for people who need or
want them, a central concern of a concurrence written by Justice Kennedy.
A state "generally may rely on the reasonable assessments of its own professionals"
in determining whether an individual is eligible for a particular service
or program, and the ADA does not require community placement where it is
opposed by the affected individual.

As to defenses, in a section of the opinion
joined by Justices OíConnor, Souter, and Breyer only, Justice Ginsburg
wrote that "[t]o maintain a range of facilities and to administer services
with an even hand, the State must have more leeway than the courts below
understood the fundamental-alteration defense to allow." The ADA permits
a state to offer evidence concerning the effect of a requested modification
on its ability to meet responsibilities to the diverse population of persons
with mental disabilities, as well as the relation of the modificationís
cost to the total mental health budget. Also, the opinion stated that in
the context of a comprehensive, effectively working plan, a waiting list
moving at a "reasonable pace" not controlled by endeavors to keep institutions
full would satisfy the Stateís obligation to make reasonable modifications.
The Court remanded the case for further proceedings consistent with its
opinion.

In dissent, Justice Thomas, joined by Justices
Rehnquist and Scalia, joined the State in asserting that discrimination
requires proof that persons without disabilities were treated differently
from persons without disabilities, i.e., a showing that the disabled and
non-disabled needed the same services, and the disabled were denied the
services while the non-disabled received them.

The Courtís decision accords weight to
the interests of persons with mental disabilities seeking community placements
and the interests of the states, and both sides are claiming victory. The
case is of more general significance for at least two reasons:

The integration mandate in Title II extends
to persons with physical as well as mental disabilities. Further, Title
III of the ADA, which applies to public accommodations, also mandates that
goods, services, etc., be provided in the most integrated setting appropriate
to individual needs. Hence the force of the Courtís ruling is not limited
to public programs.

Language in the Courtís opinion undermines
the position of appellate courts that have dismissed challenges to inferior
treatment of mental illness vis-a-vis physical illness in disability plans.
Opinions in these cases typically recite that the ADA only applies to differential
treatment of the disabled vis-à-vis the nondisabled. See, e.g.,
Lewis
v. Kmart Corporation, 1999 WL 394280 (4th Cir. 1999). A footnote to
the Olmstead opinion affirms that, in the view of the majority,
U.S. anti-discrimination laws encompass disparate treatment among members
of the same protected class. Similar issues arise in connection with health
insurance policies that single out HIV/AIDS for inferior treatment.